Sins of commissions.

Sins of Commissions

Why aren't we using the courts-martial system at Guantanamo?

It sounded like grist for the Ralph-Nader-They-Are-Really-the-Same crowd last week when it was announced that a John Kerry administration would scrap the military commissions now being used at Guantanamo Bay and replace them with a system patterned on military courts-martial. Yet nothing could be farther from the truth. While the Bush administration and its defenders have tried to lull Americans into thinking that what is being done at Guantanamo is "military justice" or "martial justice," these commissions have largely been used to run roughshod over the American military justice system. Sen. Kerry aims to go back to using the proud American military justice system that is the envy of the world.

Why invent a bad system when a better one already exists?

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This is an issue that should be above politics. A courts-martial system would protect the nation far more than the military commission process, while preserving our nation's most fundamental liberties. It is not being soft on the war on terror to criticize a system so problematic that it has failed to produce a single conviction or charge against a high-ranking member of al-Qaida in three years; a system that has seen only four low-level individuals charged at all. Yet the Bush administration has tricked many, including the editorial writers of the Washington Post just a few days ago, into thinking that if military commissions are not used our country will be left exposed and helpless.

Here's what a courts-martial system would look like: It would be governed by the landmark 1951 Uniform Code of Military Justice—a congressional enactment that revolutionized the procedures, offenses, and punishments available in the military system. Offenses would be defined by Congress, and Congress has already explicitly said that courts martial have jurisdiction to try violations of the laws of war—precisely the offenses that the administration wants to try in these commissions. It would use existing military judges who have experience in dealing with complicated questions of guilt and innocence. Judges would not be hand-picked by the civilians at the Pentagon, but chosen randomly. The members of the court martial who would decide the facts would similarly not be selected by Pentagon civilians, but could be chosen from the standing court-martial convening orders—orders that function like the civilian jury pools we all know and love. The procedures and regulations for the trial would be known in advance. The decision would be subject to review by a specialized court of military justice—composed of judges named by the president and confirmed by the Senate.

There is simply no good reason to reinvent the wheel here. But that is what the Bush administration's reckless experiment with military commissions has been all about. They have said that because it is using a "commission," it doesn't need to follow any rules of military justice as set out by Congress, despite the fact that Congress has explicitly said otherwise. Instead, the administration claims it has the power to do whatever it wants in these commissions, and that the defendants have no constitutional or statutory rights whatsoever.

There's a lot to be said about the constitutional absurdity of this position. But Sen. Kerry is right to seize as well on the pragmatic problems with the commissions. Because the administration has been forced to make things up as it goes along, it is hardly surprising that three years have passed with no evident progress. Inventing an entirely new legal architecture out of whole cloth takes a tremendous amount of time and should only be done when absolutely necessary. And it certainly should not be done without the deliberate and considered help of the Congress, which is how our courts-martial system was, after all, reformed in the aftermath of World War II.

In the days before the first Guantanamo commissions opened two weeks ago, the defense received no fewer than three different trial guides—each differing with respect to the rights and procedures afforded the defendants. This confusion extended to the most basic of questions—including who would rule on issues of evidence, witnesses, and law. It turned out that members of the actual commissions, who serve as its judges, included a friend of the "appointing authority," who approves the charges against the defendants—and who should be supervising the commission members, as well as an intelligence officer who participated in an operation directly related to the commission. Only one of the six commission judges was even a lawyer (and that person was shown to be not a full member of the Bar).

A courts-martial system would have brought the accused to justice far more quickly. The rules would be the same as those applied to the American servicemen and -women accused at Abu Ghraib. Using those rules would have sent a powerful signal about the vitality of American military justice, instead of woefully denigrating the concept, just as the entire world is watching.

Abu Ghraib is also relevant for an entirely different reason: tortured testimony. The administration's commission rules break from courts martial in that they do not forbid the introduction of such testimony. Indeed, they do not even require the defendant, the defense attorney, or the commission judges to be told about how evidence was obtained. Our military justice system has recognized over the years that tortured testimony is not reliable and that it must be excluded to avoid giving interrogators an incentive to obtain it. But now, as this nation grapples with the vexing issue of torture, the administration has scrapped that vital prophylactic rule—a rule that protects not only human dignity but also basic fairness.

When asked why they do not use courts martial (or at least borrow their rules), the administration has offered two arguments. First, it has asserted blindly that courts martial are not available to people who lack prisoner-of-war status. That is flatly not the case, as the 1951 law explicitly states. Second, it has claimed that only military commissions have procedures capable of handling classified information. Yet it is patently absurd to think that our courts-martial system could not handle classified information. It already does so, day in and day out. We have had courts martial in Bosnia, Afghanistan, and Iraq. Courts martial are already tooled up to handle evidence seized on a battlefield.

In stating that the rules governing courts martial do not apply to commissions, the administration has placed itself in stark contrast to other administrations. Even in the midst of the Vietnam war, with thousands of dead, President Nixon's Defense Department examined the commissions option and concluded that "the specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial. Both logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible."

Sen. Kerry's views closely resemble those of President Nixon's Defense Department, whereas (as I have said elsewhere in Slate) President Bush's closely resemble those of King George III.

In the end, the real justification for military commissions has been the Bush administration's hope that no preexisting rules would mean no limits—in other words, that the commissions would permit the government to proceed at its convenience and whim. That type of thinking animated the decision to warehouse detainees at Guantanamo Bay in the first place, and it was rejected by the Supreme Court this past June. The danger with these commissions comes not only in their threat to our Constitution, and our standing in the world as a beacon of fairness, but also in their challenge to the perception of military justice. Our nation—whomever the next president may turn out to be—should admit it made a mistake and return to using our powerful and fair system of courts martial—a system that would generate swifter convictions of terrorists. As our nation's great Chief Justice John Marshall put it in 1803, ours is a "government of laws, and not of men."

Neal Katyal teaches law at Georgetown University. He argued the Hamdan case before the lower courts and the U.S. Supreme Court.

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